It's that category that applies to Sam and Kassandra and other immigrants who are gay, lesbian, bisexual or transgender. In 1994, then-U.S. attorney general Janet Reno determined that homosexuals were "a particular social group" by designating as precedent a 1990 case in which a gay man from Cuba won asylum based on the fact that the Cuban government had sentenced him to a forced labor camp as punishment for being gay. That ruling paved the way for future cases.
But asylum claims based on sexual orientation are not always clear-cut, especially when the facts get tangled up in bias.
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Kassandra faced a hard life in El Salvador.
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Bryon Large can relate to his clients.
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In 2009, the Denver-based U.S. Tenth Circuit Court of Appeals slapped the wrist of Denver immigration judge Donn Livingston for denying asylum to a gay man from Morocco because, according to court documents in the case, Razkane v. Holder, his "appearance does not have anything about it that would designate [him] as being gay. [He] does not dress in an effeminate manner or affect any effeminate mannerisms."
Livingston also noted that the man, Razkane, who entered the United States on a visa obtained through the Fulbright Program, hadn't had any boyfriends in Morocco (though he did "engage in homosexual conduct" in the United States, according to court documents). So, Livingston reasoned, it was unlikely that if Razkane were sent back to Morocco, where homosexuality is illegal and merely flirting with a man can get you thrown in prison, he would engage in "the type of overt homosexuality that would bring him to the attention of the authorities."
In other words, Razkane wasn't openly gay enough.
The appeals court called Livingston's assessment "homosexual stereotyping" and reversed the decision. "Such stereotyping would not be tolerated in other contexts, such as race or religion," the court wrote. "Nor will it be tolerated in the case of a homosexual applicant."
But the court stopped short of criticizing what some attorneys and legal scholars say is a dangerous precedent set by the United States Board of Immigration Appeals called "social visibility." In 2006, the BIA, which is based in Virginia and hears every immigration appeal case in the nation (including Razkane's, in which it agreed with Livingston's decision), found that immigrants seeking asylum because of their membership in a particular social group must possess characteristics that are both "highly visible and recognizable by others in the country."
The 2006 case in question involved a Colombian man who was afraid to return to his country because he'd told the government inside information about a powerful drug cartel, and the cartel had come after him and his family. The BIA ruled that non-criminal informants are not a particular social group, in part because their conduct is secret and "out of the public view."
While understandable in some instances, experts say that line of thinking has been adopted by asylum officers and immigration judges around the country — and has proven dangerous when it comes to GLBT asylum cases. Some adjudicators, they say, have begun to define sexual orientation by a person's acts and not as an immutable characteristic.
"In many ways, a gay man or a lesbian or a transgender person, their sexual identity is defined by their behavior, and it can arguably be completely avoided," says Fadi Hanna, a lawyer in New York City who has written about social visibility. "You don't 'need' to have a boyfriend or a girlfriend." But, he adds, "Asking someone to avoid those things is effectively asking them to not be who they are. It's not reasonable." And, he says, a judge shouldn't expect it of them.
Denver immigration attorney Bryon Large agrees that social visibility is a problem — especially with regard to gay immigrants from homophobic countries who were forced to hide their identities. "While I certainly can understand the reasoning behind it in a lot of ways, it's very dangerous, because there are certain groups that are not socially visible," he says.
It's less of an issue, Large and others say, with immigrants who are transgender, especially if they didn't transition from male to female, or vice versa, until they came to the United States. It would be very visible to friends, family members, neighbors and the police if, for example, a person left their home country as one gender and returned as another.
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Growing up in the capital city of San Salvador, Kassandra was poor. Her father was an alcoholic. Her mother worked in a pharmaceutical factory to support Kassandra, her older sister and two older brothers until she became ill and had to quit. Making money became the children's responsibility. At eight years old, Kassandra began selling tickets to fairs traveling through town. When there were no fairs, she and her siblings sold bread and salsa in the street.
"We didn't have anything," she says.
Sometimes, to eat, the children would steal the avocados that grew in the city.
Difficult already, Kassandra's life got worse after she was raped. "I always hoped my body would desire physical attraction or sex with a man, but it came very early," she says. "Somebody made that happen much sooner than I was ready for it."
